The
defendant-appellant and "Appointing Authority", the
New Orleans Fire Department ("NOFD"), appeals a
decision of the Civil Service Commission
("Commission") dated July 7, 2016, in favor of the
plaintiff-appellee, Daniel Hampton, ordering the NOFD to
restore any back pay and emoluments related to his emergency
suspension on July 2, 2013. For the following reasons, we
hereby affirm the Commission's ruling.

FACTS
AND PROCEDURAL HISTORY

Mr.
Hampton was a Firefighter with status as a permanent employee
in the NOFD. On May 24, 2016, the Commission rendered a
decision that granted in part Mr. Hampton's appeal
challenging an emergency suspension, and denied in part his
appeal regarding the subsequent termination. [1] On June 1, 2016,
NOFD requested a rehearing solely on the Commission's
decision to reverse the emergency suspension arguing that
there is no procedural requirement for a pre- disciplinary
hearing regarding an emergency suspension.[2] The Commission
granted NOFD's motion for rehearing, but affirmed its
decision that NOFD owed back pay and emoluments related to
the emergency suspension of Mr. Hampton on July 2, 2013. In
its well-written reasons attached to the July 7, 2016
judgment, the Commission stated, in pertinent part:

On August 19, 2013, Appellant [Mr. Hampton] received notice
from NOFD that it was terminating his employment due to
Appellant's failure to improve his performance following
a 90-day review period. This notice also informed Appellant
that NOFD was "still awaiting the results of
[Appellant's] July 2, 2013 drug test." On August 28,
2013, Appellant attended a pre-termination meeting during
which members of NOFD's senior leadership addressed
Appellant's poor performance and subsequent failure to
improve.

By NOFD's own account, the pre-termination meeting was
Appellant's "opportunity to address [his] work
performance." The pre-termination meeting was focused on
Appellant's work performance and NOFD did not address the
July 2, 2013 drug test and instead focused on Capt.
Howley's special report and Civil Service Rules regarding
service ratings. The Commission also notes that, at the time
of the August 28th pre-termination meeting, Appellant had
presumably served an almost two-month suspension as a result
of the July 2nd allegations.

* * *

NOFD argues that there is no requirement for a
pre-disciplinary hearing prior to placing an employee on an
emergency suspension. However, La. R.S. § 33:2181
requires that, prior to the issuance of discipline, all fire
employees be afforded specific due process protections. There
is no distinction or exception for emergency suspensions
contained within the statute or case law interpreting the
statute. The only way NOFD can argue that it was not required
to provide Mr. Hampton with an opportunity to respond to the
allegations related to his July 2, 2013 drug test
prior to placing Mr. Hampton on an emergency
suspension is to allege that the emergency suspension was not
discipline. NOFD cannot take this position given that
Appellant was prevented from reporting to work and was not
paid. Indeed, NOFD acknowledged that Appellant's
emergency suspension was in fact discipline during its
presentation.

NOFD relies upon this Commission's Rules in support of
its argument that a pre-disciplinary hearing is only required
when a classified employee is being considered for
termination. However, this Commission's decision was not
based on a violation of its Rules, but upon a violation of
La. R.S. § 33:2181.

NOFD next argues that it provided Appellant with written
notice - via July 9, 2013 letter to Appellant - of NOFD's
investigation prior to commencing a formal investigation.
First, such a notice is only part of the due process required
by § 33:2181. Second, this notice came one week
after Appellant's emergency suspension had
already begun.

NOFD's reliance on the Louisiana Civil Service
Commission's rules is misplaced. The State's current
rules define discipline only as "suspension without pay,
" SCS Rule 12.3. The state repealed its rules regarding
emergency suspensions cited by the City in its brief to the
Commission. Now, the State's rules allow for an emergency
suspension without pay only when an employee is under
criminal investigation. (Footnote omitted). Under the
State's rules, a "suspension" pending an
administrative investigation must be with pay, and
is thus not discipline under the state's definitions. SCS
Rule 12.10(a)-(d). (Emphasis in original)

As the City points out, the Commission found that the NOFD
established, by a preponderance of the evidence, that the
Appellant reported to work on July 2, 2013 impaired by
prescription medication. However, such a finding does not
speak to the procedural ...

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